In Hawaii v. Trump, the court reasoned that “Any reasonable, objective observer would conclude, as does the Court for purposes of the instant Motion for TRO, that the stated secular purpose of the Executive Order is, at the very least, ‘secondary to a religious objective’ of temporarily suspending the entry of Muslims.” The entire construct of the “reasonable, objective observer” is, of course, a fiction. In no sense does the court ever go on the street and ask random people what they think. Rather, as designed, the judge puts himself in the shoes of the “reasonable, objective observer.” Judges, who will usually view themselves as fair-minded individuals, no doubt consider themselves in all aspects of their jobs to be reasonable and object. If, for whatever reason, they couldn’t be reasonable and objective on a case, the remedy is recusal. Indeed, the court’s analysis admits as much: both the “reasonable, objective observe” and “the Court” reach the same conclusion!
Once we understand that the “reasonable, objective observer” standard is but a mere proxy for the judge’s own rule of reason, the wide-ranging debate over Hawaii v. Trump becomes clear. Two people, who both consider themselves reasonable, can look at the same record, and reach very different conclusions. To put a finer point on this conclusion, two people, who both consider themselves reasonable, can look at the same record, and vote for Donald Trump or Hillary Clinton, respectively. Whichever camp you find yourself in, in all likelihood, you think the voter in the other camp was unreasonable. (I won’t bother rehashing the merits of the election here).
In Politico, I attempted to capture this mentality by applying deference based on what cable news channel you watch.
Courts need not be blind to Trump’s awful past statements (call it Fox News deference). Judges can and should ask if there is a plausible reason why those seeking admission from these six war-torn countries should undergo heightened review. However, courts should not uncharitably read every piece of evidence in the most negative possible light (call it MSNBC deference). . . . Rather—and despite his own egregious and inexcusable attacks against the courts—judges should treat the 45th president like any other (call it C-SPAN deference).
A “reasonable, objective observer” could have drawn this conclusion, applying C-SPAN deference:
- On the campaign trail, Donald Trump proposed a ban on immigration of a billion Muslims from every nation in the world.
- A few months later, Trump said he abandoned that plan, and wanted to focus on “extreme vetting” for all aliens–regardless of religion–from certain dangerous “territories.”
- In several interviews, Donald Trump reiterated his support for the “territories” policy.
- After he is inaugurated, he expresses a preference for admitting persecuted Christians in majority-Muslim nations, such as Syria.
- The first executive order halted immigration from seven nations, subject to narrow exceptions. The order also provides a preference for members of persecuted religious minorities.
- Though the order applies to all aliens from those countries regardless of religion, each country is a majority Muslim nations, so this order will predominantly affect muslim.
- Only a handful of aliens from those nations have successfully engaged in successful terrorist attacks in the United States (In October 2016, an Iraqi refugee in Houston pleaded guilty of providing support to ISIS. One month later, a Somalian refugee engaged in a terror attack at Ohio State University with his car and a knife).
- One of his former advisers said: “So when he first announced it he said “Muslim ban.” He called me up, he said, “Put a commission together. Show me the right way to do it legally.” I put a commission together with judge Mukasey [Michael Mukasey, a former federal judge and Attorney General], with congressman McCaul [Texas Rep. Michael McCaul, chairman of the Homeland Security Committee], Pete King [New York Rep. Peter King, former chair of the Homeland Security Committee], a whole group of other very expert lawyers on this, and what we did is we focused on, instead of religion, danger—areas of the world that create danger for us. Which is a factual basis, not a religious basis. Perfectly legal, perfectly sensible. And that’s what the ban is based on. It’s not based on religion, it’s based on places where there are substantial evidence that people are sending terrorists into our country.
- A federal court in Washington enjoined the order. The Ninth Circuit affirmed, and suggested that the order had Establishment Clause problems, but ruled that the order as drafted violates the Due Process Clause.
- In response to this order, the government drafts a new order that eliminates all references to religion, including the preference for members of persecuted religion minorities. The order also creates a systems of exemptions and waivers to ensure that those with interests to the United States should be allowed to enter. At bottom, the only people who would be affected are aliens who have never had an interest in the United States, or refugees.
- The rationale for the new order is that the six nations do not adequately cooperate with the United States on counterterrorism policies. Three of those nations are state sponsors of terrorism, and the other three have been impacted by war and terrorism. None assist the United States with counter-terrorism measures. As a result, the government needs a pause to reassess screening procedures for aliens from those countries.
- The new order is challenged in court.
With that C-SPAN style recitation of facts, could a “reasonable, objective observer” conclude, in the words of McCreary County that “the secular purpose [is] genuine, not a sham, and not merely secondary to a religious objective.” Of course. There is more than enough to show in this “sequence” that there is a legitimate interest behind this policy. As for his adviser’s statements, one could conclude that the President was trying to find a legal way to keep terrorists from entering the country, and he abandoned a religious test, focusing on certain dangerous areas.
Whether you agree with it, or think it is wise, is a separate question from whether a “reasonable, objective observer” would find the stated purpose is a sham. A “reasonable, objective observer,” watching C-SPAN, would not conclude this is a sham. Hawaii v. Trump applied MSNBC deference to the executive order.